Atreyee Majumder speaks to Darryl Li, a lawyer who has litigated cases concerning detention in Guantánamo and the CIA rendition program about Trump’s ban on Muslim migrants.
On Friday, January 27, President Donald Trump signed an executive order that temporarily bars the entry of refugees into the US and bans citizens of Iraq, Iran, Syria, Somalia, Sudan, Libya and Yemen under any visa category. The order, which appears to have undergone minimal review before being placed into effect, was taken to apply to travelers who were already in the air when the order was signed. By Saturday, crowds of protesters were gathering at airports across the country and, on Saturday night, a federal judge called for a national stay on the order. It was initially unclear whether the Department of Homeland Security intended to comply with the stay, threatening to precipitate a constitutional crisis during the second week of the Trump administration.
What follows is a lightly edited interview between contributing editor Atreyee Majumder and Darryl Li, who is assistant professor of anthropology at the University of Chicago and a lawyer who has litigated cases concerning detention in Guantánamo and the CIA rendition program.
Could you tell us a bit about powers of judicial review in the US legal system? To what extent can courts intervene in the actions of the executive branch? To what extent can courts be superseded?
In the civics-lesson ideal of how the American state operates, Congress makes laws, the executive branch carries them out, and the judicial branch interprets law. So, in theory, the federal courts can strike down an executive order promulgated by the president if it violates legislation passed by Congress or if it violates the US constitution. As we all know, the process of judicial interpretation is itself a terrain of contestation and outcomes are often uncertain.
It is worth noting, however, that the order handed down by federal judge Ann Donnelly on Saturday night merely suspended removals under the executive order and did not require anyone to be released (a more recent order from a federal judge in Boston has ordered releases, but the scope of its applicability is unclear). Yet the government did release many of the detainees at various airports, even as it continued to hold others. This is a reminder that popular pressure is absolutely crucial in this fight. I have no doubt that the protests at the airports made all the difference.
During the George W. Bush administration, legal efforts to challenge aspects of the so-called ‘War on Terror’ often devolved into a kind of liberal gladiatorial spectacle – important lawyers and important judges hashing out important ideas, working their way up to the Supreme Court, in a discourse whose terms combined esoteric technocratic questions of legal interpretation with sweeping assertions of American exceptionalism and beneficence. As someone who was active in litigation against the CIA rendition program and detention at Guantánamo, I want to be very clear about something – we won some battles, but we lost the war. This is not surprising, since those litigation efforts were never firmly grounded in robust popular movements, for many reasons. I fervently hope we can avoid repeating that scenario. It’s a bit of a chicken-and-egg question as to whether the problem was with the lawyers or the weakness of such movements, but the point to emphasise here is that when in an oppositional stance, the best lawyering in the world can only do as much as popular forces make possible.
What are the legal and practical implications of an executive order? Is their use indicative of the unfolding of a legally sanctioned emergency?
An executive order promulgated by the president is legally binding and is an everyday instrument of governance. As the phrase implies, executive orders are meant to direct the work of the executive branch – especially the departments of the Cabinet and various administrative agencies – in the operations of government. But executive orders are supposed to carry less weight than legislation passed by Congress, since the whole idea is that the executive’s job is to carry out laws passed by the legislature.
On matters of immigration, Congress has developed a very elaborate statutory framework and the executive order likely falls afoul of it in various ways. Of course, it’s important to stress here that US immigration laws are already deeply exclusionary and regressive in many ways. If you read the executive order, you won’t see the names of the seven countries whose citizens were barred from entering the US. Instead, you will find only a reference to lists included in other legislation duly enacted by Congress, which had earlier imposed discriminatory restrictions on citizens of those countries – legislation, I should add, that was passed with the overwhelming support of Democrats in Congress. So, to the extent that there is a fight in the courts over the executive order, it will likely be as much about which branch of government has the authority to engage in racist and exclusionary practices than about ending racist and exclusionary practices per se.
As for emergency, the federal government for decades has had dozens of legally declared states of emergency ongoing, concurrently dealing with a staggering variety of topics. There has been much confusion around this concept, especially in light of certain theoretical fads in US anthropology. My sense is that this happens when people imagine there is a clearly identifiable category of normal law, whose photographic negative is emergency, exception, or the absence of law (all of which are very different concepts). So if emergency is always already with us, it’s less clear how we harness analytical value from the concept. Aside from the conceptual issues with how we anthropologists tend to throw these terms around, I am wary of the emergency framing because it tends to contribute to forms of mobilisation and thinking that are short-term and reactive, conducive to burn-out, and likely to normalise the everyday violence of race and class warfare against the marginalised in the United States. If we are looking for new categories to think with, I am more curious about emergence than emergency – how forms of political disruption not only come into being, but also can move beyond ephemeral moments while still embodying possibility.
What is the status of the Department of Homeland Security press release that says the national stay on the executive order won’t matter?
It is perfectly possible to read Judge Donnelly’s order and the DHS press release as mutually compatible. The executive order bars entry of certain people, and Donnelly has temporarily suspended the deportation of those people; what you then get is captivity, likely prolonged for some folks.
More interesting is how the whiny, defensive tone of the press release exemplifies the contempt for institutions that has been a hallmark of the Trump phenomenon. Ordinarily, the executive branch would respond to an order like this by expressing respectful disagreement, restating the merits of their position while recognising judicial authority. Here, the administration is taking a far more combative stance that indicates they are pushing the limits of how far they can go in disregarding the courts. The Trumpian assault on institutions of American public life presents a dilemma – on the one hand, as critical scholars we know those institutions are deeply flawed and have very much contributed to the mess that we are now in. On the other hand, the alternative is often cynical in its anti-elitism and portends terrifying outcomes. There is a very significant analytical challenge here in how to make sense of dramatic developments without losing sight of the deeper continuities at work.
What is the nature of an airport (its inside and outside) as sovereign territory?
US courts have held that certain constitutional protections are loosened at the border. The border, of course, has turned out to be a remarkably elastic concept, which includes airports insofar as people have not yet been legally admitted into the United States. Customs and Border Protection (CBP) also uses the concept of the border to set up immigration checkpoints up to one hundred miles from land borders, coastlines, or from any port of entry. The American Civil Liberties Union estimates that two-thirds of the US population lives within areas that CBP defines as border zones where they seek to exercise expanded powers.
The airport protests this weekend were especially impressive, given how heavily surveilled and securitised these structures have become in recent decades. The protests should be praised not only for pushing back against Trump’s xenophobic policies but also as acts of reclaiming public space. Airports, when not fetishised in fantasies of capital as cosmopolitan oases detached from their local contexts, have for too long been treated as zones of total deference to coercive power and surveillance. It was as if the protesters were channeling all of the resentment and rage that has collectively built up from the endless and pointless humiliations of removing shoes, having machines scan our genitalia, being wedged like sardines into ever-shrinking airplane seats, and so on – to say nothing of the additional repression experienced by those deemed racially suspect.
Another interesting aspect of the protests was the federalism angle, which is often overlooked in theorisations of state power. During the protests at John F. Kennedy International Airport, authorities shut down the AirTrain rail link to prevent demonstrators from arriving only to be countermanded by New York Governor Andrew Cuomo. State and local governments are likely to become loci for whatever resistance occurs under the new dispensation (for reasons of opportunism as much as anything else), giving a very different spin to states’ rights arguments that are commonly associated with the Right in the United States. Anthropologists, who think of themselves as having a comparative advantage in thinking about things local, would be well-advised to pay analytical attention.
You have done a lot of work on Islamist armed groups and US global detention practices. What are the concerns that a lawyer like you or lawyers involved in the ACLU right now face? What kinds of state censure are lawyers, journalists and activists likely to face?
No one knows what the future will bring in terms of the Trump administration’s willingness to go after the so-called loyal opposition – establishment institutions such as the media, universities and large NGOs like the ACLU. At the moment, I am much more concerned about activists who do not enjoy similar protections and social capital. I fear that as liberal outrage lurches from one spectacle to another, social movements like the Water Protectors at Standing Rock and the Movement for Black Lives will face increased repression. They not only deserve support, but should be recognised for the leadership they have provided in challenging settler colonialism and white supremacy and respected for the depth of their organising experience and strategic vision. If we are in a situation where mainstream liberal organisations are alone in leading resistance, then we are in even deeper trouble than we think.
What international legal recourse is available? Is the United States signatory to the UN Convention on Refugees?
International law, including the UN Refugee Convention, is generally applicable in US courts only insofar as US legislation has explicitly incorporated it. Crudely put, US courts apply international law only when it has become domestic law. More useful, perhaps, will be pressure in bilateral relationships, especially countries like the UK, where a petition opposing a visit by Donald Trump has gathered over one million signatures. It’s crucial to remember that US global hegemony depends in large part on collaboration with allies and client states. If US power operates nearly everywhere, that means it can be opposed almost anywhere, albeit in different ways and subject to different challenges.
I know you are skeptical of liberal outrage in all forms, but this new energy and enthusiasm on the part of those who hadn’t generally been part of the protest crowd is something striking. Would you agree and what do you make of it?
There is no doubt that this is a promising moment of mobilisation. There will be major challenges ahead for the Left in terms of expanding its ranks and building more robust coalitions without being coopted by a lowest common denominator politics or captured, vampirised and discarded by the Democratic Party. We must all find ways of addressing both the “more woke than thou” as well as the “Trump is a unique evil, so let’s get rid of him and everything will go back to normal” positions. Anthropologists, insofar as they identify with these protest movements, have a responsibility to push them to think more critically about narratives like “we are all immigrants” or “this is not who we are,” which erase experiences of indigeneity and slavery.
A deeper challenge for US anthropology is reconciling the progressive leanings expressed by much of the discipline with our suffocating entrenchment in the praxis of working in neoliberal universities. We live in a moment when institutions are in a deep crisis of legitimacy and academia is hardly exempt. I am not just talking about adjunctification and labor challenges that we face as university workers, but also the broader role of universities and meritocracy in perpetuating crushing levels of inequality in the US. If we do not focus on our own locations, I don’t know how we can meaningfully build and hold spaces of resistance. Looking forward is crucial, as I have no doubt that one week from now, many of us will have forgotten about the travel ban and will be reacting to yet another outrage.
So yes, insofar as I have hope, I just hope we are not too late.
This article was originally published on Cultural Anthropology.